Williams-Echols Dry Goods Company v. Wallace

• Decision Date: 01 March 1920
• Docket Number: 205
• Citation: 219 S.W. 732,142 Ark. 363
• Parties: WILLIAMS-ECHOLS DRY GOODS COMPANY v. WALLACE
• Court: Arkansas Supreme Court

219 S.W. 732

142 Ark. 363

WILLIAMS-ECHOLS DRY GOODS COMPANY v. WALLACE

No. 205

Supreme Court of Arkansas

March 1, 1920

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant; J. Sam Wood, of counsel.

1. It was error to permit plaintiff's counsel to ask the jurors whether they were stockholders in any insurance company writing indemnity insurance. 131 Ark. 6. This case fairly settles the present case. See also 104 Id. 1; 154 P 159; 150 N.Y.S. 93; 154 S.W. 1070; 145 P. 1066; 172 S.W. 987; 166 S.W. 643; 146 N.Y.S. 762; 102 N.E. 778; 130 P. 986. The error was harmful. 90 N.E. 724; 159 N.W. 832. See also 79 N.E. 854; 126 S.W. 242. The only remedy is to reverse the case to cure the error. 132 S.W. 974; 150 N.Y.S. 1093; 95 N.E. 10; 210 N.Y. 262; 206 Id. 20; 96 S.W. 530; 107 Id. 264; Ib. 1139.

2. It was error not to withdraw the case from the jury because of the voluntary remark of Tom J. Williams as to the place of accident. 78 Ark. 147; 48 Id. 460; 70 Id 170; 79 Id. 388. No negligence whatever was proven in this case and it was harmful error to permit the voluntary statements of Tom Williams to go to the jury. Supra.

3. The court erred in the instructions given and those refused as asked by appellants. There was no evidence to show negligence of appellants and the issue should have been taken from the jury. 95 Ark. 597; Ib. 623; 77 Ark. 599; 82 Id. 131; 4 Crawford's Digest, pp. 4999 to 5008. The allegation of negligence of Williams in starting the elevator is not supported by any evidence. The scintilla doctrine does not apply. 118 Ark. 349; 122 Id. 445; 114 Id 113.

4. It was especially error to give No. 6 for plaintiff. 82 Ark. 499.

5. A directed verdict for defendant should have been given. 85 Ark. 479; 89 Id. 562; 105 Id. 526; 111 Id. 309. The negligence of plaintiff is undisputed and established as matter of law. 89 Ark. 24; 104 Id. 267; 107 Id. 158.

Vincent M. Miles, for appellee.

1. There was no error in interrogating the jurors. 131 Ark. 6; 127 Id. 63.

2. The cases cited by appellant on the errors in instructions are not applicable here. 93 Ark. 397; 80 Cal. 575. Negligence of appellant was shown and the instructions contained no error. 127 Ark. 163; 213 U.S. 150; 128 Ark. 479; 87 Id. 109; 90 Id. 494. No contributory negligence was proved. 85 Ark. 479. The jury has settled by their verdict the question of negligence and there are no reversible errors in the instructions.

OPINION

MCCULLOCH, C. J.

Appellant, a domestic corporation, is engaged in the wholesale dry goods business in the city of Fort Smith, and operates an elevator which transports passengers and freight from floor to floor in the store building. Appellee received severe personal injuries while ascending from one floor to another in the elevator, and he instituted this action to recover compensation for his injuries, alleging that the same were caused by the negligence of appellant in the construction and operation of the elevator. There was a denial in the answer of each of the allegations of negligence, but a trial of the issues before a jury resulted in a verdict in appellee's favor assessing damages in the sum of $ 7,000.

Appellee went into the store of appellant to purchase certain articles of merchandise, and was invited by a salesman into the elevator to be carried to an upper floor of the building for the purpose of being shown the articles sought to be purchased. The elevator was used for lifting freight as well as passengers, and was operated by means of a rope cable handled by the operator. When appellee entered the elevator he was accompanied by two of the employees of appellant, both of whom were salesmen, and one of whom was on this particular trip operating the elevator. There was an incandescent electric lamp hanging immediately in front of the elevator, but it was not lighted at that time, though according to the evidence the day was a dark and cloudy one. There was a closed door on the opposite side of the elevator from the side on which appellee and his companions entered. The elevator was enclosed by a brick wall, and beneath the door on the back side was a wooden beam seven or eight inches wide and three and a half inches thick, which extended out into the elevator hole about eighteen inches above the line of the first floor of the building. When the elevator stood at the first floor, there was a clearance of about three and a half or four inches between the elevator floor and the brick wall on the back side, but when the elevator passed the beam just referred to in ascending, this clearance was completely taken up, and the floor of the elevator came nearly in contact with the beam as it passed. Above the beam there was a space of about eighteen inches, the thickness of the brick wall, between the inside of the elevator hole and the closed door. The brick wall, the beam and the closed door were, according to the testimony, painted the same color, and, in the semi-darkness which prevailed when the light was not turned on, it was not easy to discover the beam jutting out into the elevator hole. When appellee walked into the elevator, he stepped over to the back side and turned around fronting the door through which he had entered and took a position with his heel partly extending over the clearance space between the floor of the elevator and the brick wall at the back. He was not aware of the fact that his heel thus extended over the clearance, nor that the beam jutted out into the hole so as to close up the clearance space as the elevator ascended. Mr. Williams, one of the salesmen, took hold of the cable and started the elevator upward, and as it arose to the beam appellee's heel was caught, and very serious and severe injuries were inflicted.

It is unnecessary to discuss the extent of the injury further than to say that the proof was sufficient to warrant the recovery of the amount of damages awarded by the jury.

There were five acts of negligence charged against appellant, which are set forth in the brief of counsel in the following order:

"First. Negligent operation of the elevator without any railing, board or other obstruction around the back of the elevator; second, negligently permitting the elevator well to be suddenly reduced by the beam, the beam coming abruptly out from the wall, thus suddenly reducing the clearance; third, negligent failure to have a flange of board or metal inclining from the beam downward toward the wall; fourth, negligently failing to have a light in front of the elevator; fifth, the negligence of Tom Williams in suddenly starting the elevator upward."

It is contended, in the first place, that the evidence is not sufficient to warrant the finding of negligence in either of the respects mentioned. We are of the opinion, however, that there was sufficient evidence to support a finding of negligence on the part of appellant in the construction and operation of the elevator, and also there was sufficient evidence to support the finding that appellee was not guilty of contributory negligence. It was a dark and gloomy day and the electric lamp in the front of the elevator was not lighted. The back wall of the elevator was so constructed as to be deceptive in appearance and to mislead a person entering the elevator for the purpose of ascending to another floor. The jutting of the beam out into the elevator hole so as to close up the space between the wall and the floor of the elevator, without affording some sort of protection to one who inadvertently overstepped the edge of the elevator floor, was sufficient to constitute negligence, or at least to authorize the inference of negligence from those facts.

The court gave, at appellee's request, instructions submitting generally the question of negligence to the jury without enumerating in detail the alleged acts of negligence set forth in the complaint. Appellant asked five separate instructions excluding from the consideration of the jury each of the alleged acts of negligence, and it is now argued, as grounds for reversal, that at least three of those alleged acts did not constitute negligence and were not the proximate cause of appellee's injuries and should have been taken from the jury by the three requested instructions. The instructions which it is contended the court should have given relate to the first, third and fifth acts of negligence set forth above.

Those acts may not of themselves, separate and apart from the other facts in the...